Riddle me this: when is a benefit not a benefit? The answer: when that benefit results in a change to the terms and conditions of an ISO. Making changes to ISO can have the unfortunate effect of disqualifying the options from ISO treatment, which might make the optionees less than enthusiastic about the new “benefit.”
The Uber Case
This was highlighted in a recent class-action lawsuit brought by an Uber employee (McElrath v. Uber Technologies). McElrath, an employee of Uber and the plaintiff in the suit, was promised an ISO that vested over four years in his offer letter. But, when the ISO was granted, the vesting schedule was shortened to just six months. This caused a much greater portion of the ISO to exceed the $100,000 limitation. The plaintiff contends that Uber changed the vesting schedule to ensure a corporate tax deduction for the option.
There could be any number of legitimate reasons for Uber to grant the options with a shorter vesting schedule than stated in the offer letter. Additionally, shorter vesting periods certainly offer benefits to employees. I suspect that many companies consider acceleration of vesting to be a change they can make without an award holder’s consent. But this illustrates that, when it comes to ISOs, it is important to consider the tax consequences to the optionee before making any changes.
Modifications, Too
The Uber case doesn’t involve a modification, just a discrepancy between what was granted and what was promised in the offer letter. But this concept also applies any time an ISO is modified. Any change that confers additional benefits on the optionee (other than acceleration of exercisability and conversion of the option in the event of a change-in-control) is consider to be the cancellation of the existing ISO and the grant of a new option. If the new option doesn’t meet all of the ISO requirements (option price at least equal to the current FMV, granted to an employee, $100,000 limitation, etc.), the option is disqualified from ISO treatment.
And, while acceleration of exercisability (which most practitioners interpret to mean vesting) doesn’t result in a new grant, there is still the pesky $100,000 limitation to worry about. In many cases, acceleration of exercisability will cause an ISO to exceed this limitation.
Where a modification disqualifies all or a portion of an option from ISO treatment, it is important to consider whether it is necessary for the optionee to consent to the modification. Most option agreements stipulate that any changes that adversely impact the optionee cannot be executed without the optionee’s consent. Keep this in mind the next time your compensation committee has a bright idea about making existing ISOs better.
As announced yesterday, we’ve extended the deadline to participate in the Domestic Stock Plan Administration Survey that the NASPP co-sponsors with Deloitte Consulting. For today’s blog entry, I have six things I am excited about learning from this year’s survey.
Domestic Mobility Compliance: New this year, we’ve added questions on tax compliance for domestically mobile employees. This is an area of increasing risk and I’m curious to learn how far companies have come in their compliance procedures.
ESPP Trends: This survey takes an in-depth look at the design and administration of ESPP plans. I hear rumors of increased interest in ESPPs—both in terms of companies implementing new plans and enhancing the benefits in their existing plans; I’m excited to see if this plays out in the survey results.
Stock Plan Administration Staffing: This is the only survey I’m aware of that collects data on how stock plan administration teams are staffed, the department that stock plan administration reports up through, and how companies administer their plans. It is always intriguing to see the trends in this area.
Ownership Guidelines: The prevalence of ownership guidelines has increased dramatically in the last decade, with 80% of respondents to the 2014 survey reporting that they have these guidelines in place. Has this trend topped out or will we be reaching near universal adoption of ownership guidelines in this survey?
Rule 10b5-1 Plans: These trading plans have become de rigueur for public company executives, with 84% of respondents to the 2014 survey allowing or requiring them. We’ve expanded this area of the survey to capture more data on policies and practices with respect to these plans.
Director Pay: The survey reports the latest trends in the use of equity in compensating outside directors. I’m particularly interested in seeing what percentage of respondents indicate that they have imposed a limit on the number of shares that can be granted to directors. This is a best practice to avoid shareholder litigation but adoption of it was low in the 2014 survey—have we made progress on this in the past three years?
If you are interested in these trends, too, you’re going to want to participate in the survey so that you’ll have access to the results. It’s not too late to participate, but you have to do so by the end of this week. We’ve already extended the deadline once; we can’t extend it again. Register to participate today!
– Barbara
* Only issuers can participate in the survey. Service providers who are NASPP members and who aren’t eligible to participate will receive full access to the published results.
It’s restricted stock and unit week here at the NASPP. For today’s blog, I have five trends in the usage of restricted stock and units, from the 2016 Domestic Stock Plan Design Survey, co-sponsored by the NASPP and Deloitte Consulting.
Trend #1: Use of time-based stock grants and awards is still on the rise.
The percentage of companies issuing stock grants and awards increased by 10 percent since our last survey (up from 81 percent in our 2013 survey to 89 percent in 2016). In addition, among those companies that use restricted stock and unit awards, close to 40 percent of respondents report that their usage of these vehicles has increased at some level of their organization over the past three years, while only 18 percent report decreased usage over the same time period. Overall, that nets out to greater usage of restricted stock and units by more companies than in past surveys.
Trend #2: Time-based stock grants and awards are the equity vehicle most frequently granted to lower-ranking employees.
Stock grants and awards are the equity vehicles most commonly granted to lower-ranking employees, with 77 percent of respondents granting awards to middle management (approximately three times the percentage of respondents that grant either stock options or performance awards at this employee rank). Fifty-two percent of respondents grant restricted stock/units to other exempt employees (compared to 13 percent for stock options and 11 percent for performance awards) and 19 percent grant these awards to nonexempt employees (compared to 7 percent for stock options and 3 percent for performance awards).
Trend #3: Time-based stock grants and awards are also common at the top of the house.
Stock grants and awards are even more common for senior-level employees with 79 percent of respondents granting awards to the CEO, CFO, and named executives, and 84 percent granting awards to other senior management. The five-point drop in usage of restricted stock/units at the CEO, CFO, and NEO level as compared to other senior management is likely due to the increased usage of performance awards in the C-suite.
Trend #4: Restricted stock units are the vehicle of choice among various types of time-based full-value awards.
The 2016 survey saw a continuation in the shift away from restricted stock awards toward restricted stock units. Respondents reporting that they currently grant restricted stock awards* dropped from 44 percent in 2013 to 31 percent in 2016, while respondents currently granting restricted stock units* increased from 77 percent in 2013 to 83 percent in 2016.
* Awards not in lieu of cash.
Trend #5: Awards are most commonly granted on an annual frequency.
The overwhelming majority of companies that make grants of stock and units do so on an annual basis (ranging from 95 percent of respondents for CEOs, CFOs, and named executives to 75 percent of respondents for nonexempt employees). In addition to annual grants, stock/units are most frequently awarded upon hire, promotion, and for retention purposes.
For today’s blog, we have a special guest entry from Emily Cervino of Fidelity Stock Plan Services on a subject near and dear to my heart: defining FMV as the prior day close for purposes of determining taxable gain on award vesting events and the price of shares purchased under your ESPP.
What a Difference a Day Makes! Considering Prior Day Close
By Emily Cervino of Fidelity Stock Plan Services
At the recent NASPP Annual Conference in Houston, I had the opportunity to present “This Ain’t My First Rodeo: Lessons Learned about Equity Compensation.” I took advantage of the new format introduced at the conference: laser-focused, 20-minute sessions during breaks—as an alternative to the traditional, more in-depth breakout panels. I love this format. Short sessions appeal to conference-goers who are looking to cram in as much learning as possible, as well as those whose shorter attention spans make an hour-long, detailed session a hard sell.
I broke this micro-session into even smaller bits and used it as an opportunity to talk about four concepts that can make equity professionals’ lives easier. One concept, which I’d like to review here, is reconsidering the fair market value (FMV) definitions used for equity awards. FMV is an important concept used to set the price on stock options, calculate the taxable income on cash exercise and restricted releases, and determine the purchase price for ESPP.
Back when I started out, things were simpler. FMV was used for grant pricing, and, when it came to calculating taxable income on stock option exercises, where the vast majority of transactions were same-day sales, the actual sale price was utilized. Today, the equity landscape has changed dramatically. The majority of grants now come in the form of restricted stock, which doesn’t include an exercise. Rather, as a time-based vehicle, restricted stock releases (creating a taxable event) are based on a preset schedule.
According to the NASPP Stock Plan Design Survey, 87% of companies use close or average as the FMV to calculate taxable income on restricted stock.(1) Among clients of Fidelity Stock Plan Services, we see very similar results, with 85% of companies using close or average.(2) Which means, for most companies, taxable income can’t be calculated until the market closes on vest date. The exceptions (12% of NASPP responses, 13% of Fidelity clients) are using prior day close (or average), a better option that provides them with a full additional day for calculations! That means on the day before vest date, the FMV is determined as of market close, and the restricted release process can begin, allowing shares to be delivered to participants sooner.
And the benefits don’t end there. This is also a great strategy for ESPP. NASPP doesn’t specifically ask about FMV for ESPP, but in the Fidelity client base, while close and average still rule, we see 5% using prior day close, and a full 20% using current day open price as FMV, providing the benefit of extra hours to one-in-four companies processing their ESPP.
So why do most companies stick with close or average? This may be one of those things that falls into the “we’ve always done it this way” category. While many companies have changed the award types they grant, their FMV definition hasn’t yet evolved.
Plan Sponsors should check out their plan documents. It may be that FMV is only defined for grant pricing, where close or average is a great strategy. The plan document may provide flexibility with respect to the FMV used for tax purposes and/or ESPP. Even if the plan prescribes close or average FMV for tax and/or ESPP, a switch to prior day close (or current day open price) could be effected at the board or committee level and would not require shareholder approval.
Check it out! The gift of time is priceless.
~~~~~~~~~~~~~~~~~~~~~~~
[1] 2016 NASPP Domestic Stock Plan Design Survey (co-sponsored by Deloitte Consulting LLP)
2 Fidelity client base, as of 9/30/2016
Emily Cervino is a Vice President at Fidelity Stock Plan Services. She has been an active participant in the equity compensation industry since 1998, and now focuses on strategic marketing initiatives, thought leadership, and building Fidelity’s strong industry presence.
Emily is a frequent speaker at equity compensation events, past president of the Silicon Valley Chapter of the NASPP, a member of NASPP, GEO, and NCEO, and a 2015 recipient of the NASPP’s Individual Achievement Award. Emily is a Certified Equity Professional (CEP) and she holds Series 7 and 63 securities registrations.
Views expressed are as of the date indicated and may change based on market and other conditions. Unless otherwise noted, the opinions provided are those of the author, and not necessarily those of Fidelity Investments.
Links to third-party websites may be shared on this page. Those sites are unaffiliated with Fidelity. Fidelity has not been involved in the preparation of the content supplied at the unaffiliated site and does not guarantee or assume any responsibility for its content.
Fidelity Brokerage Services LLC, Member NYSE, SIPC, 900 Salem Street, Smithfield, RI 02917. 780300.1.0
The treatment of equity compensation in a change-in-control is complicated and perhaps the most complicated of all is the spin-off. We recently posted an article by Michael Gorski of Semler Brossy that looks at various ways outstanding stock grants are handled in a spinoff (“Keeping Your Equity Strategy in Balance Through a Corporate Spin‐Off,” originally published in workspan).
Gorski explains that, to minimize concerns over employee relations, companies should seek an outcome in which the pre-spin equity value is preserved. He breaks the approaches into various types, including the following two most common methods:
Shareholder (or Portfolio) Approach: Equity holdings are treated the same as those of a company shareholder in that they are divided into equity in both the remaining company and the spun-off entity on a one-for-one basis. For options, the exercise prices are converted, but the number of options remains the same.
Employee (or Concentration) Approach: Equity holdings are entirely in either the remaining company or the spun-off entity. This is the approach used most often as it ensures employees are aligned directly with the success of the company they are working for post-spin. For options, both the number of options and the exercise prices are translated to maintain the existing value.
Gorski provides a few examples from high-profile deals. For instance, when PayPal was spun off from eBay, it used the “employee approach” for employees staying with eBay or shifting to PayPal, but for executives in charge of a smooth transition, it used the “shareholder approach.”
When Kraft Foods spun off from Mondelez International, Gorksi notes that the transaction used the “shareholder approach” for options, SARs, restricted stock, and deferred stock units to encourage a collaborative environment between the companies. However, for performance shares, it used an “employee approach” to align directly with each company’s post-spin goals.
At the CEP Symposium later this month, I am part of a panel that will present on social media strategies that we can leverage in stock plan education programs. Recently, one of my co-panelists, Emily Cervino of Fidelity Stock Plan Services, wrote an article about this topic. I’m so excited about this idea that I asked Emily if we could publish her article as a guest blog entry.
3 Social Media Tricks to Make Stock-Plan Communications Irresistible
By Emily Cervino, Fidelity Stock Plan Services
Did you click on this article because, surely, you have the time to read just three things? And who doesn’t want “irresistible” communications? A quick read could make you a certified hero at work!
I hope you found the title catchy, compelling, and irresistible, because that was my intention. The title is my attempt at “clickbait”—a title that tempts you with information you need and want—but that you have to click to get. The main purpose of clickbait is to attract attention—simply by getting readers to click on it.
I’m gearing up for the CEP Symposium, where I’ll join Aftab Ibrahim, T-Mobile, and Barbara Baksa, NASPP, for a session on using social media tricks to make stock plan communications compelling. No, we aren’t talking about using actual social media for stock plan communications—that’s a no-go from the get-go for many companies. But we are interested in taking the tricks that make social media so addictive and applying them to stock plan communications.
If you are reading this article, you’re on social media and I’d wager that this isn’t your first foray into social media today. I can’t honestly say that I check social media every morning before I get out of bed, but it is a safe bet that by the time I’m done with my 2 minutes of teeth brushing (as recommended by the ADA) I’ve peeked at social media. Sometimes I brush even longer because, you know, one thing leads to another and I clicked here and then there, and then there’s a 30-second video I just have to finish!
Imagine a world where your employees eagerly gobble up your communications, clicking on videos and racing from article to article to absorb the nuggets of stock plan wisdom. Envision employees gathered in the break room sharing ESPP videos on their phone screens. And, treat yourself to the thought that employees look forward to this stuff, rather than approach it with the same enthusiasm as completing their tax return. It isn’t that outlandish. There are some simple, easy things that you can do. While you can go all out with expensive and custom work, there are a number of impactful changes—surefire tricks, as promised—that you can implement today.
Clickbait. Rethink your titles and subject lines to get your audience’s attention. Remember: You want them to open an email or click on a link. The words you choose need to drive action. Which are you more likely to read: “ESPP enrollment window closes on Friday. Enroll today” or “Top benefits you’ll miss out on if you don’t enroll in ESPP by Friday”?
Listicles. No, this is not a made-up word to try to get another click. A “listicle” is an article in a list format. It is easy to organize thoughts into lists, and short lists are tempting to read. Which sounds more compelling, “Equity plan: frequently asked questions” or “5 critical things to know about your stock grant”? When you use listicles, keep them short. Trying to tempt employees to read “36 Tips for Tax Time” is a tough sell. Admit it—you’ve scrolled through an article to check the length before you committed to reading it, haven’t you? Bonus tip: Listicle titles make great clickbait.
Interactive quizzes. I’m sure many of us have been lured in by these social media gems: quizzes that rate us on whether we can identify more movie stars than the average person or spot grammar errors or identify exotic foods. Try this out on stock plan topics with a simple five-question quiz. Don’t make it too hard—people like to succeed—and be sure to connect your participants with more information. For example, reward those who score 4-5 with “Congrats! You are a Stock Plan Pro. You are ready for our advanced topics (with a link to deeper content)” or, for those who score less than 4, “Looks like you could benefit from our video on stock plan basics. (with link to video).”
When you are browsing through different forms of social media, take note of what attracts your attention and contemplate if those attention-grabbing tricks can be integrated into your stock plan communications. And, if you are in the Silicon Valley, please try to join us for the CEP Symposium on March 28. We have a session packed full of examples and activities designed to get all attendees to rethink their approach to communications. #ThisSessionRocks.
Emily Cervino is a Vice President at Fidelity Stock Plan Services. She has been an active participant in the equity compensation industry since 1998, and now focuses on strategic marketing initiatives, thought leadership, and building Fidelity’s strong industry presence.
Emily is a frequent speaker at equity compensation events, past president of the Silicon Valley Chapter of the NASPP, a member of NASPP, GEO, and NCEO, and a 2015 recipient of the NASPP’s Individual Achievement Award. Emily is a Certified Equity Professional (CEP) and she holds Series 7 and 63 securities registrations.
Views expressed are as of the date indicated and may change based on market and other conditions. Unless otherwise noted, the opinions provided are those of the author, and not necessarily those of Fidelity Investments.
Links to third-party web sites may be shared on this page. Those sites are unaffiliated with Fidelity. Fidelity has not been involved in the preparation of the content supplied at the unaffiliated site and does not guarantee or assume any responsibility for its content.
Fidelity Brokerage Services LLC, Member NYSE, SIPC, 900 Salem Street, Smithfield, RI 02917. 791858.1.0
Barring some sort of unforeseen obstacle, T+2 settlement is scheduled to go into effect on September 5 of this year. (That’s the Tuesday after Labor Day—what better way to cap a holiday weekend than with a major change in the US securities markets? I guess they didn’t want to wait until December 26).
On Tuesday, I blogged about why the securities industry is moving to T+2 (“Progress Towards T+2“). For today’s blog entry, I have a list of six things you need to think about with respect to T+2.
1. Be prepared to shorten processing time for any stock plan transactions that involve open market sales. This includes same-day-sale and sell-to-cover transactions. The broker will need to receive the shares and know the funds to be transferred to the company to cover the cost of the transaction and tax withholding in time to settle by T+2. That means you’ll have one less day to process the transaction.
2. Other types of transactions may be affected as well. Cash and net exercises and share withholding don’t involve open market transactions and, thus, theoretically aren’t subject to the mandated settlement period. But, in recent years, many companies have begun allowing employees to conduct these transactions using the automated, self-service tools provided by their brokers. Some (many? all?) brokers may subject these transactions to the same two-day settlement period simply because that is how their systems will be designed to work.
3. Watch out for complicated transactions. It may be no sweat to calculate the tax withholding for US employees and get that information over to your brokers in 24 hours. But for non-US employees, where you may have to contact local payroll (possibly in a time zone that is half a day off from yours) for the appropriate tax rate, this might not be so easy. And then there are your mobile employees. Withholding at the maximum tax rate and refunding the excess through local payroll might be the only way to manage this process.
4. Beware the IRS deposit deadline for same-day sales. Where the company’s cumulative deposit liability to the IRS exceeds $100,000, the deposit needs to be made within one business day. But for same-day sale exercises, an IRS field directive considers the deposit timely if made within one day of the settlement date. If settlement occurs on T+2, that means the deposit now needs to be made by T+3.
5. Talk to your brokers. Contact your brokers to find out what they are doing to prepare for T+2 and what testing opportunities will be available to you. Think about what you’ll need from your brokers and communicate this to them. Don’t wait for your brokers to contact you; get out in front of this.
6. Don’t forget about employee communications. Your brokers are going to be communicating this change to your participants. Make sure you know what they will be communicating and when, so you aren’t caught off guard. And review your own educational materials for any mention of the settlement period.
Some of the panelists in the NASPP Conference session on this encouraged the use of the term “settlement period” without explaining how long this period is, so that if/when the period is reduced to T+1, you don’t have to change it again. I hate that idea. It makes a confusing concept even more confusing for employees. And it could be decades before we move to T+1 (moving from T+3 to T+2 took 20 years). By then, you’ll probably have been promoted (or retired) and updating the educational materials will be someone else’s problem.
In the NASPP’s 2014 Domestic Stock Plan Administration Survey (co-sponsored by Deloitte), 92% of respondents said they use at least one electronic form to distribute individual grant notices and/or agreements to US employees. In the same survey, 76% of respondents said that a separate form of acceptance of a grant is required. That translates into a majority of responding companies using electronic delivery methods for at least some of their US grant material, with a majority also requiring proactive acceptance of the terms. This combination of practices was recently tested in litigation. Keep reading to find out the outcome.
If you’re a company that distributes grant documents and requires acceptance of award terms electronically, a recent court case may help validate the processes you have in place for those practices. In a recent blog titled “Stock Award Web Process Works: Non-compete Enforced” (February 7, 2017), author Mike Poerio describes a recent court case (ADP, LLC v. Lynch & Halpin – New Jersey) that “upheld the granting of a preliminary injunction against two former employees who had joined a competitor in violation of restrictive covenants set forth in their stock awards.”
At the core of the former employees’ argument was that the web-based acceptance system for their stock grants did not adequately inform them of the full consequences for accepting the terms of their awards (which included references to a non-compete agreement). As Poerio describes, “the former employee lost their case because because ADP’s check-the-box award system involved the following key steps that led the court to bind them to the stock award agreements and the associated non-competes.”
Poerio analyzes ADP’s step-by-step award acceptance process and provides his commentary on how each step played into the outcome of the award case. Here’s a great chance to compare your own electronic grant acceptance steps to the process that ultimately helped ADP prevail. Perhaps there are areas where covenants can be strengthened or the acceptance process improved.
According to the same 2014 NASPP/Deloitte survey mentioned at the beginning of this blog, 12% of respondents do not require acceptance of grant terms, and another 10% (combined) presume acceptance if no reply is received, or, upon vesting/exercise of the award. It may be worth reviewing these practices, as the outcome of the ADP case suggests that putting time and attention into ensuring that employees do have access to and proactively accept the terms of their grants can make all the difference. Of equal importance is establishing web based processes that are clear and can provide evidence of the acceptance and associated process steps. The bottom line is that web based grant acceptance can and does hold up in litigation when the right practices and documents are in place to evidence the steps the employee took to accept their award.
It’s not often that the job of stock plan administrator shows up in a list of top jobs; this is no reflection of the quality of the job but more because few people outside of the stock plan community know this job exists. I have commiserated with many stock plan administrators about the difficulties of trying to communicate what they do to the uninitiated. It is not dissimilar to trying to explain my own job (sometimes it feels like no one has ever heard of the concept of a membership association).
So imagine my surprise when Andrew Schwartz of Computershare forwarded me an article from ThinkAdvisor that ranks stock plan administrator as #6 on a list of best paying jobs for business majors (“15 Best Paying Jobs for College Business Majors: 2016.”
The list was compiled using data from Payscale.com, including their list of most popular jobs for business graduates and their College Salary Report (which considers a sample of 1.4 million college graduates). According to the article, the salary listed is comprised of base annual salary or hourly wage, bonuses, profit sharing, commissions, and other forms of cash earnings (ironically, equity compensation isn’t included). It’s also not a starting salary; it’s for someone who is mid-career (about 44 years old with 15 years of experience).
The article reports that the median mid-career pay for business administration majors working as stock plan administrators is $120,000. Some of the jobs that stock plan administrator came in ahead of include tax compliance manager; treasurer; and payroll, accounting, finance, and budget directors.
As an English Lit major, however, I take issue with the article’s suggestion that humanities majors need to change majors. I know plenty of liberal arts majors who have ended up in stock plan administration. So if you know any soon-to-be college graduates (business or humanities majors), you might want to suggest they follow in your footsteps.
Am I the only one out there that can use a break from the news? I’m generally not averse to change, but with much uncertainty looming in so many areas (think the proposed repeal of Dodd-Frank provisions, tax reform, and other changes) sometimes the doldrums can set in. With that frame of mind, it was a nice breath of fresh air to read a recent article by Bruce Brumberg of myStockOptions.com titled “10 Ways Stock Compensation Can Make You Happier.”
If your participants are feeling similar news blues and looking for a pick-me-up, this is the article for them. Or, if you are simply looking for a way to articulate the more intangible benefits of stock compensation, this will be a great resource. Brumberg steps beyond the mechanics of stock compensation to explore the thrill and peace of mind one can get from learning about stock compensation, monitoring and tracking awards, and realizing the true benefits of wealth creation. Among my favorites is the concept of linking mindfulness and meaningfulness to one’s workplace effort and intentions, which thereby can affect the company’s stock price and, in a full circle moment, incite feelings of optimism and happiness. “When your honest hard work elevates your company’s stock price, equity compensation rewards you. That can heighten your feelings of engagement, optimism, and happiness.”
